Consent and fertility
R. v Lawrance,  EWCA Crim 971 and s.74 Sexual Offences Act 2003
This judgment, handed down in July 2020, examines the limitations of the meaning of consent within s.74 Sexual Offences Act 2003. It held that a man’s lie about his fertility should not be deemed to be so closely connected to the nature or purpose of sexual intercourse that it is capable of negating consent.
Facts of the case
Lawrance met the complainant on a dating website. Prior to their first meeting, Lawrance confirmed that he had had a vasectomy. Upon meeting, the complainant sought confirmation that Lawrance had had the procedure before they engaged in sexual intercourse. She detailed that she did not want to get pregnant. Lawrance reassured her that he was infertile and sexual intercourse took place between them on two occasions that evening. Lawrance left during the night and in a text message the following morning he stated, ‘I have a confession. I’m still fertile. Sorry’. The complainant later found out that she was pregnant and underwent a termination.
Lawrance was convicted of two counts of rape on the basis that the complainant agreed to have unprotected sexual intercourse with Lawrance when she would otherwise have insisted on him wearing a condom. The appeal was successfully brought on the basis that the complainant’s consent had not been vitiated by Lawrance’s lie about previously having a vasectomy.
Sexual Offences Act 2003 s.74 Consent
For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
R v B  EWCA Crim 2945 was held to be analogous with Lawrance. In R v B, the accused did not disclose that he was HIV positive prior to having sexual intercourse with the complainant. Similarly to the unplanned pregnancy in Lawrance, the transmission of HIV was determined not to be part of the performance of the sexual act, but rather a consequence of it. Burnett, CJ acknowledges that in R v B the accused failed to disclose information, rather than positively assert a deception as in Lawrance. The relevant test for the Court in Lawrance was, ‘whether a lie as to fertility is so closely connected to the nature or purpose of sexual intercourse rather than the broad circumstances surrounding it that it is capable of negating consent. Is it closely connected to the performance of the sexual act?’ [para. 35]. Burnett, CJ determined that it was not.
In Lawrance, the complainant was not deprived of the freedom or capacity to consent to sexual intercourse within the meaning of s.74 of the 2003 Act. The lie that she was told related to the ‘surrounding circumstances’ of the act (whether or not Lawrance had had a vasectomy) and was not so closely connected to the act of sexual intercourse itself as to interfere with her consent under s.74. In short, she had consented to having unprotected sexual intercourse with Lawrance. Burnett, CJ held that the complainant was deceived about ‘the nature or quality of the ejaculate and therefore of the risks and possible consequences of unprotected intercourse. The deception was one which related not to the physical performance of the sexual act but to risks or consequences associated with it.’ [para. 37]. Burnett, CJ continued that the question of consent remained unaffected by whether the sexual intercourse resulted in a pregnancy or not.
The Court helpfully distinguished the cases of Assange v. Swedish Prosecution Authority  EWHC 2849 (Admin) and R (F) v. DPP  EWHC 945 (Admin) from Lawrance. In Assange the complainant gave consent on the basis that Assange wore a condom but Assange either did not do so or removed the condom during intercourse, and in F the complainant gave consent on the basis that F would withdraw prior to ejaculation but he never intended to comply with the condition, nor did he do so. In both Assange and F the deception of the complainant concerned an element of the act of sexual intercourse, not the surrounding circumstances of it.
Lawrance develops R v B and emphasises the distinction between cases where a person’s consent has been vitiated under s.74, and cases where a person is simply deceived about a matter which is central to their choice to have sexual intercourse. A complainant may be deceived by lies relating to issues such as marital status, political or religious views, status or wealth but considering Lawrance, these ‘surrounding circumstances’ alone will not negate consent.